Monday, February 24, 2014

The NYT's Patricia Cohen had an interesting piece over the weekend on efforts by photographers' groups to push back against expansive interpretations of fair use. Alfred Steiner thought it misled by failing to "emphasize [the] crucial difference between one copy (artwork) and many copies (movie)." For more on that distinction, see here.

Derek Fincham says "it was a reminder of how little safeguards protect genuine works of art from forgeries." I would say it's a reminder of how little difference there sometimes is between genuine works of art and forgeries.

Saturday, February 22, 2014

"As a result it operates not according to the rules and regulations that govern museums but the fiduciary responsibilities of an institution of higher education, said Bateman."Bateman is Randolph College's President, and I think he's clearly right. For those interested in this issue of university-owned artworks -- I mean really interested in grappling with the complexities rather than doing the usual Ohmigod Repulsive routine -- I would start with the law review articles mentioned here and here.It's also interesting to compare Randolph's approach to that taken by the Brandeis administration during the Rose debacle. Brandeis started out by conceding too muchrhetorical ground to the Deaccession Police. They thought if we have a "museum," we are bound by their rules. So they came up with what turned out to be a disastrous plan to "close" the Rose. But that put them on the defensive right from the start. Randolph, on the other hand, made the decision to stand up to the deaccession bullies, to refuse to accept their way of framing the debate. As Bateman says in the article linked above: "They [the AAMD and the other deaccession bullies] have a single position and they don’t want anyone to think about these issues in any way other than the way they want you to think about it." I think he just summed up about five years of my blogging on this subject in one sentence.

The big news this week is that the Corcoran Gallery is giving up the ghost. Carol Vogel has the details.

For now, I'll just say that it's a massive instance of the Ellis Rule -- the deal "ensure[s] that the Corcoran’s art collection would remain in public institutions." So, while the usual suspects will fall over themselves in the usual competition to see who can be THE MOST OUTRAGED by this OUTRAGEOUS OUTRAGEOUSNESS, my initial reaction is that I'm with David Ross: "I agree this is sad, and that the Corcoran has long been a tragic institution, but this is not such a bad outcome."

"After firestorm over (now remote) possibility of Detroit Institute of Art having to deaccession/sell parts of their permanent collection, a bit surprised I haven't seen more relief over fact that Corcoran Gallery of Art's collection will stay safe (ie public) w/Natl Gallery. Which isn't to say the whole scenario is good news. It's messy and from a historical standpoint, sad. But it could be worse. Just imagine outrage if announcement was that Corcoran would be selling off works to keep limping forward, recoup losses, or pay creditors."

Yes, imagine the outrage. But is it really better to transfer the entire collection to the National Gallery than to have given them some of the collection in exchange for the cash needed to keep the Corcoran afloat?

Just learned of a First
Department decision from November that could wreak some serious havoc on the
world of authentication litigation. The decision is here.
Briefly, Dealer A sells some work to Dealer B and sues for non-payment.
In defense, Dealer B claims (among other things) that “some or all” of the
works are fakes. Dealer A denies this: he says that, during the
period of time Dealer B had possession of the works, “either [Dealer B] or some
other custodian forged the authentic works that [he] originally gave to [Dealer
B].”

The trial court (Justice
Kornreich again)
holds that “the only opinion that can shed any light on the authenticity of the
Returned Works is that of an expert who has examined the originals and the
Returned Works and has the wherewithal to detect a forgery” -- in other words,
an authentication expert who saw the works before they were sold and can look
at them again now. The First Department affirmed. “The motion court
correctly determined that ... the testimony of an expert who viewed the
consigned works before they left [Dealer A] and who can testify that they
were forgeries when they left and were forgeries on their return.” “This,” they
add, “is consistent with how art work and forgeries are identified,
authenticated and detected.” No biggie.

But imagine an ordinary
authentication lawsuit. A collector buys a work from a gallery, with a
warranty of authenticity. Some time later, the collector discovers (let’s
imagine conclusively) that the work is a fake and sues the gallery. The
gallery can now say, “Wait a minute. The Pollock I sold you was
genuine. Yes, this is a fake, but how do we know it’s not a fake created
by you ‘or some other custodian’ in the two years since the work left the
gallery?” Unless the collector can produce an expert who examined the
work before the sale and can say it’s the same as the one he now has in his
possession, he loses. That can’t be right, yet it seems to be what the
case says.

Now, the facts in this First
Department case were kind of odd – Dealer B had passed the works on to another
party, who “had custody of the art for 2 to 6 years” leading up to the
lawsuit – so maybe the intention was to limit it to similar situations where
“chain of custody” is an issue. But again, there is nothing in the
language of the decisions themselves that is so limited. Definitely worth
watching to see how this develops.

Monday, February 17, 2014

I finally got around to reading the decision on the motion to dismiss Ron Perelman’s lawsuit against Gagosian Gallery. I had gotten the impression from the headlines in the press (see for example here, here, here) that it was something of a victory for Perelman, but it turns out to have been a pretty decisive victory for Gagosian.

The court threw out the breach of contract and unjust enrichment claims, as well as the breach of fiduciary duty claim: “plaintiffs’ allegations make clear that they were experienced and sophisticated business investors who entered into negotiated, arm’s-length transactions with defendants, which does not give rise to a fiduciary relationship. … Moreover, plaintiffs’ reliance on the fact that Perelman and Gagosian were friends for 20 years, ‘socialized together,’ were ‘business acquaintances,’ had ‘worked together’ previously and invested together, to establish a fiduciary relationship is unpersuasive.”

All that’s left is the “fraud” claim, which alleges that, as part of a complicated “exchange” transaction, the gallery “knowingly” “overvalued” the works Perelman got back. Apparently the gallery put in some evidence that this was not the case, but “these Invoices are not the type of conclusive documentary evidence upon which the Court generally relies on a pre-answer motion to dismiss.” So the claim survived for now.

For background on the case, here is Felix Salmon in 2012 correctly observing that “you don’t become a fiduciary because you’re friends, or because you’re knowledgeable, or any of those other reasons.” He said the suit was “utterly ridiculous, and will almost certainly get thrown out of court.” Close.

Sunday, February 16, 2014

A couple of follow-up points on Randolph College's recent sale of a $25 million Bellows. (Not to be confused with the Pennsylvania Academy of the Fine Arts recent sale of a $40 million Hopper. The former is the Worst Thing That's Ever Happened. The latter is nothing for anyone to be concerned about.)

"Randolph’s collection contains significant works, Dr Bateman said,
that aren’t up for sale, such as works by Georgia O’Keeffe and Edward
Hopper. Asked if the logic of selling off the Bellows shouldn’t
concern those afraid that similar arguments could be made to sell the
O’Keeffe or the Hopper, Dr Bateman said that wasn’t the case. 'We know
how much money we need and it can be done with these [already planned]
sales,' he said."

That's a good answer, but what really interests me is: how come we never hear the same question with the "good" kind of deaccessionings? How come no one ever asks if the "logic of selling off the Hopper" shouldn't concern those afraid that similar arguments could be made to sell lots of other masterpieces? I saw some people criticize the Hopper sale, but only on its own merits (just as one could criticize the Randolph sale on its own merits). But you never see anyone criticize sales-to-buy-more-art on slippery slope grounds. That's reserved exclusively for sales where the proceeds are used for other purposes. Strange.

I also wanted to call attention to the statement issued by the AAM on the sale. Here it is, in its entirety:

"The sale of George Bellows’s 'Men of the Docks' by the Maier Museum of
Art at Randolph College is a flagrant, egregious violation of our Code
of Ethics for Museums, showing total disregard of an important tenet
common to the charter of all museums: collections are held in the public
trust. And the public’s trust is the coin of the realm for museums.
Strict adherence to the highest standards and best practices has made
museums of all types among the most trusted sources of information for
the American people. And the sale of 'Men of the Docks' threatens that
lofty status. Further, the trust of both the public and elected
officials at all levels of government has enabled museums to remain
largely a self-regulated industry; this action belies that distinction.
The 3,500 museum members of the American Alliance of Museums—and
especially our 441 college museum members—vigorously protest the sale of
a great American artistic treasure."

Is it me, or are they not even trying any more? The "coin of the realm"? What is that supposed to mean in this context? This action belies what distinction? Who is going to be convinced by this kind of rhetoric that didn't already completely agree with their position? What then is the point? It's almost as if they felt like they had to say something so the Deaccession Police couldn't criticize them for not saying anything.

Their statement on the Pennsylvania Academy's Hopper sale was less publicized, so, as a public service, I am reproducing it here:

"The sale of Edward Hopper's 'East Wind Over Weehawken' by the Pennsylvania Academy of the Fine Artse is a flagrant, egregious violation of our Code
of Ethics for Museums, showing total disregard of an important tenet
common to the charter of all museums: collections are held in the public
trust. And the public’s trust is the coin of the realm for museums.
Strict adherence to the highest standards and best practices has made
museums of all types among the most trusted sources of information for
the American people. And the sale of 'East Wind Over Weehawken' threatens that
lofty status. Further, the trust of both the public and elected
officials at all levels of government has enabled museums to remain
largely a self-regulated industry; this action belies that distinction.
The 3,500 museum members of the American Alliance of Museums vigorously protest the sale of
a great American artistic treasure."

It's the coin of the realm, people. What more do you need to know? You can read the whole statement here.

Oh, one other important distinction between the two sales: the (bad) Randolph sale was to the National Gallery in London, so the work remains in the public domain. The (good) PAFA sale was to an anonymous private buyer.

Friday, February 07, 2014

Carol Vogel reports today that Randolph College has sold a George Bellows painting to the National Gallery for $25.5 million. I haven't bothered to check, but I'm sure the usual suspects are rending their garments. But as Vogel tells it, it sounds like a pretty good deal all around: "It is the first major American painting to enter the National Gallery’s collection. The acquisition is also the start of a partnership between Randolph and the museum. Curators will go to Randolph to lecture; students from the college will be invited to do internships at the museum; and it is possible, officials at the college said, that from time to time, Randolph will be able to borrow the painting."

Most importantly, the work stays in "the public trust." Or have we decided the British don't count as part of the public?

Thursday, February 06, 2014

A Portuguese bank owned a bunch of Mirós. "Crippled by debt and management irregularities," the bank was taken over by the Portuguese government, which sought to recoup some of its losses by selling the work.

But aha ... the moment the works became owned by the government, they became "cultural property" that it would be outrageous to sell.

If the bank had sold the works and used the proceeds to pay its creditors (including the government), I assume that would have been non-controversial. But by switching the order around (seizing the works and then attempting to sell), the government boxed itself into a corner.